England v. State

Gilbert, J., delivered the opinion of the Court. A jury, presided over by Judge J. William Hinkel, in the Criminal Court of Baltimore, convicted James Lee Stanley England (England) and Thomas Edwards (Edwards), appellants, of rape, perverted practices and assault. Judge Hinkel sentenced both appellants to imprisonment for the balance of their natural lives for the commission of the rape and suspended the imposition of sentences on all remaining counts. Appellants, in this Court, assert three reasons why the judgments should be reversed, scilicet: (1) The trial judge erred in failing to suppress evidence obtained as the result of an illegal search and seizure.

(2) Error was committed when the trial judge ⁴¹⁴ sustained an objection to a question designed to show that the prosecutrix was the mother of an illegitimate child. (3) The life sentence was improper in that it exceeded the statutory authority. Edwards, individually, raises two additional contentions, namely: (4) The in-court identification of him by the prosecutrix was tainted by an impermissibly suggestive photographic identification. (5) The trial court erred in not granting a requested jury instruction.

On the night of December 8, 1972 the prosecutrix, a thirty-four year old married woman, was abducted from the street near her home by two men. She was forced at knife point into an automobile and thence driven to Druid Hill Park. The prosecutrix’s skirt and pantyhose were removed, and she was repeatedly ravished by her abductors. In addition, she was compelled to submit to perverted sexual acts.

During the ordeal suffered by the prosecutrix she discovered that one of her attackers had a massive keloid scar on his back. Both the rapists had removed all of their clothing and the prosecutrix felt the scar during the commission of the rape. The prosecutrix also learned that one of her attackers was named “Lee”. The victim managed to- throw herself from the automobile and sought help from two men who were standing nearby.

The two men, however, ignored the prosecutrix’s lamentations, but the prosecutrix was allowed into a motor vehicle containing an unidentified man and woman, which was stopped nearby. That car then drove from the scene. The two rapists followed for a short time, and the prosecutrix was able to obtain the license number of their motor vehicle. The “Good Samaritans” took the prosecutrix to her home from which she telephoned the police.

The victim was able to furnish a detailed description of her abductors-rapists and, in addition to the license number, a description of the motor vehicle. The car itself was quite ⁴¹⁵ unique in that it was a yellow Dodge Dart that was partially covered with psychedelic flowers. The victim also told the police that during the time that she was compelled to spend with the rapists a tape recording was continuously playing, “The Coldest Day of My Life”. The prosecutrix, on December 9, 1972, picked England’s photograph from a group of eight pictures that were shown to her.

Investigation revealed that the motor vehicle bearing license tag number LE 6380, the number given to the police by the prosecutrix, was a 1967 yellow Dodge Dart registered to England. Officer William Harris, acting upon the information learned from the prosecutrix and the State Motor Vehicle Administration, went to the residence of the appellant, England, at 1620 East 32nd Street. England was not at home. Officer Harris did not return to England’s residence until the 12th day of December, 1972, the day after England had surrendered himself to the police.

When England was interrogated he told the police that he knew nothing about the rape, and said that at the time it was supposed to have occurred he was elsewhere in company with his girlfriend and Edwards. As a result of that information the police again visited the prosecutrix and exhibited to her five other photographs. She picked from those photographs a picture of Edwards whom she said was the other rapist. Edwards was arrested on December 15, 1972.

In the meantime on December 12, 1972, as we have previously noted, Officer Harris, accompanied by members of the police crime laboratory team, went to the residence of England and conducted a warrantless search of England’s vehicle. From the car the police took a towel that was the same color as one described by the victim as having been used by her attackers to wipe themselves. Glasses, which closely matched a description furnished by the victim of those worn by England, were found in the glove compartment. In addition, Officer Harris recovered from England’s brother a tape of “The Coldest Day of My Life”.

Examination of the towel by a forensic chemist showed the presence of sperm thereon. The prosecutrix made a positive in-court identification of ⁴¹⁶ England and Edwards as her assailants, and stated that there was no doubt in her mind as to the identification of the two appellants. Edwards denied any knowledge of the offense and said that he was with England and Cheryl Lucas at the time that the rape was supposed to have occurred. Cheryl Lucas verified Edwards’s testimony.

England elected not to testify. I. England strenuously argues that the warrantless search of his automobile was violative of his constitutional rights. This Court, in a number of recent cases, has considered warrantless searches of automobiles. In each we have grounded our approval of police action upon the exigent circumstances existent at the time of the search.

See Robinson v. State, 18 Md. App. 678 , 808 A. 2d 734 (1973); Soles v. State, 16 Md. App. 656 , 299 A. 2d 502 (1973); Skinner v. State, 16 Md. App. 116 , 293 A. 2d 828 (1972); Bailey v. State, 16 Md. App. 83 , 294 A. 2d 123 (1972); Peterson v. State, 15 Md. App. 478 , 292 A. 2d 714 (1972); Scales v. State, 13 Md. App. 474 , 284 A. 2d 45 (1971); Johnson v. State, 10 Md. App. 652 , 272 A. 2d 422 (1971); Middleton v. State, 10 Md. App. 18 , 267 A. 2d 759 (1970); Johnson v. State, 9 Md. App. 166 , 263 A. 2d 232 (1970); Sutton v. State, 8 Md. App. 285 , 259 A. 2d 561 (1969); Cook v. State, 8 Md. App. 243 , 259 A. 2d 326 (1969): Johnson v. State, 8 Md. App. 28 , 257 A. 2d 756 (1969); Cornish v. State, 6 Md. App. 167 , 251 A. 2d 23 (1969). In the instant case, however, there were simply no exigent circumstances which prevented the police from obtaining a search and seizure warrant for the automobile of England. The police were in possession of detailed information concerning the identity of the appellants, a description of the automobile including the license number, and the address of the owner of the vehicle. The information was known to the officers some time on December 9, 1972, three days before the search, and thus the police had ample time to obtain a search warrant had they so desired.

The Fourth Amendment to the Constitution of the United States provides: ⁴¹⁷ “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See also Constitution of Maryland, Declaration of Rights, Art. 26, which has been held to be in pari materia with the Fourth Amendment. Givner v. State, 210 Md. 484 , 124 A. 2d 764 (1956); Johnson v. State, 193 Md. 136 , 66 A. 2d 504 (1949); Bass v. State, 182 Md. 496 , 35 A. 2d 155 (1943); Blum v. State, 94 Md. 375 , 51 A. 26 (1902). Mr. Justice Jackson, writing for the Court, in Johnson v. United States, 333 U. S. 10 , 68 S. Ct. 367 , 92 L. Ed. 436 (1948), said at 13-14: “ The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” (Footnotes omitted). The Supreme Court stated, in Boyd v. United States, 116 U. S. 616 , 6 S. Ct. 524 , 29 L. Ed. 746 (1886), at 635: “. . .It may be that it is the obnoxious thing in ⁴¹⁸ its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.

A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principáis.” In Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971), rehearing denied, 404 U. S. 874 , 92 S. Ct. 26 , 30 L.Ed.2d 120 (1971), after quoting from Boyd, supra, the Court held at 454-55: “ Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ [Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)]. The exceptions are ‘jealously and carefully drawn,’ [Jones v. United States, 357 U.S. 493, 499 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (1958)] and there must be ‘a showing by those who seek exemption . . . that the exigencies of the sitdation made that course imperative.’ [McDonald v. United States, 335 U.S. 451, 456 , 69 S.Ct. 191 , 93 L.Ed. 153 (1948)]. ‘[T]he burden is on those seeking the exemption to show the need for it.’ [United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93 , 96 L.Ed. 59 (1951)].

In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ⁴¹⁹ ‘extravagant’ to some. But the values were those of the authors or our fundamental constitutional concepts. In times not altogether unlike our own they won — by legal and constitutional means in England, [see Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng. Rep. 807 (1765), and Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.

Rep. 489 (1763)] and by revolution on this continent — a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important. [See Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960)].” Although the State cites Chambers v. Maroney, 399 U. S. 42 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970), rehearing denied, 400 U. S. 856 , 91 S. Ct. 23 , 27 L.Ed.2d 94 (1970) to support its contention that the warrantless search was valid, we find it inapposite. In Chambers , the Supreme Court announced that “exigent circumstances” justified a warrantless search, where probable cause existed, of an automobile that was “stopped on the highway.” The reason for such a holding is that the automobile is “movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” The Court pointed out that, “the opportunity to search is fleeting. . . .” The key words to Chambers are “exigent circumstances”, but the exigency is conspicuous by its absence in the instant case. Chambers does not stand for the principle that the police, given probable cause, may search any automobile under any circumstances.

Nor do the recent cases of United States v. Robinson, 414 U. S. 218 , 94 S. Ct. 467 , 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U. S. 260 , 94 S. Ct. 488 , 38 L.Ed.2d 456 (1973) extend warrantless searches of automobiles to the extent reached in the case before us. Both Robinson and Gustafson are concerned with searches made incident to an arrest. Coolidge v. New Hampshire, supra, while not “on all ⁴²⁰ fours” with the instant case, is strikingly similar. There, as here, the police had knowledge for some time of the role of the automobile in the crime; there, as here, ample time existed for the procurement by the police of a search and seizure warrant; there, as here, there was probable cause, but no exigent circumstances justified the warrantless proceeding by the police.

The search and seizure of the automobile of England was unlawful, and the evidence obtained as a result of that search should have been suppressed. If the Fourth Amendment to the Constitution of the United States and the Maryland Declaration of Rights, Art. 26, are to have meaning, they may not be eroded by over-zealous police officers who, under the guise of exigency, utilize expediency to conduct warrantless searches of automobiles when, in fact, no exigency exists. The consent of England to search his vehicle, given by him on December 13, 1972, the day after the search was actually conducted, does not, in our view, under the circumstances of this case, operate as a nunc pro tunc waiver of England’s Fourth Amendment rights. Nor is our view altered by the testimony of the police that before they obtained England’s consent to search they informed him that the search of the entire vehicle, except the trunk, had already been completed.

Because it is patent